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Cook v. Baker

United States District Court, D. Nevada

June 18, 2019

BRIAN CLAY COOK, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         Petitioner has filed an application to proceed in forma pauperis (ECF No. 25). The Court grants the motion, thus confirming appointment of the Federal Public Defender to represent Petitioner.

         Petitioner has filed a motion for leave to file a first amended protective petition (ECF No. 11). Respondents do not oppose the motion (ECF No. 21). The Court grants this motion. The Court will also give Petitioner time to file a second amended petition.[1]

         Petitioner has also filed a motion for leave to file a first amended protective petition and associated exhibits under seal (ECF No. 12). Respondents do not oppose this motion (ECF No. 22). Earlier, the Court expressed concern about sealing the operative pleading in the action (ECF No. 20). Petitioner then replied with a suggestion of partially waiving Local Rule IC 6-1(a)(2) (ECF No. 24). The Court agrees with Petitioner's suggestion.

         The Court will grant leave to file the first amended protective petition (ECF No. 14) under seal because Petitioner wishes to file a second amended petition. However, to ensure the first amended protective petition is part of the public record of this case, the Court directs counsel to redact the minor children's names from that petition, and file a redacted version of it. In addition, the second amended petition will need to use the procedures described below.

         In all future pleadings, motions, and briefs filed with the Court in this case, the parties should follow this procedure. First, the parties should refer to the minor victim as “B.C.” Second, the parties should refer to the two minor children with identical initials, “B.A.C., ” by their middle names. Third, the parties should refer to other minor children by their initials, of all their names-first, middle, and last-if possible. The Court hopes that this will keep the parties from needing to change the way of referring to one minor if another minor with similar initials is found.

         For all future exhibits, the parties should file under seal exhibits that refer to minor children. However, the parties will need to file for the public record versions of those exhibits with the names of the minor children redacted.

         It is therefore ordered that Petitioner's application to proceed in forma pauperis (ECF No. 25) is granted.

         It is further ordered that Petitioner's motion for leave to file a first amended protective petition (ECF No. 11) is granted in part with respect to the first amended protective petition (ECF No. 14). Counsel for Petitioner must file a redacted version of the first amended protective petition with the minor children's names redacted before the filing of the second amended petition. For all future documents filed with the Court, the parties must use the procedures described above.

         It is further ordered that Petitioner will have 120 days from the date of entry of this order to file and serve a second amended petition.

         It is further ordered that Respondents will have 60 days from the date of filing and service of the second amended petition to file an answer or other response. Respondents must raise all potential affirmative defenses, including lack of exhaustion, procedural default, and untimeliness, in an initial motion to dismiss. The Court will not entertain successive motions to dismiss.

         It is further ordered that if Respondents file and serve an answer, then they must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner will then have 45 days from the date on which the answer is served to file a reply.

         It is further ordered that if Respondents file and serve a motion, then Petitioner will have 45 days from the date of service of the motion to file a response to the motion. Respondents then will have 21 days from the date of service of the response to file a reply.

         It is further ordered that Petitioner's motion for leave to file a first amended protective petition and associated exhibits under seal (ECF No. 12) is granted. The parties also may file under seal any future ...


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